Perumalla Ramana Maharshi and Another vs Musunuri Bala Tripura Sundaramma and Another

C.Y. Somayajulu, J.—Respondents filed the suit seeking closure of the windows in the southern wall in the upstair building of the appellants shown as ''X'' and ''V in the plaint plan alleging that those windows, opened by the appellants in their first floor, invade their privacy. The case of the appellants is that they had to pen the windows shown as ''X'' and ''Y'' for ventilation, and as there is no right of privacy the suit is not maintainable.

In support of their case, the respondents examined the first respondent as P.W. 1 and marked Exs. A1 to A9. In support of their case, appellants examined the first appellant as D.W. 1, and did not adduce any documentary evidence. The trial Court dismissed the suit inter alia, on the ground no right of privacy is available to the respondents. Appeal preferred by the respondents questioning the dismissal of their suit by the trial Court was allowed by the judgment under appeal. Hence, the second appeal by the defendants in the suit.

The second appeal was admitted by a learned Judge on the following substantial questions of law.

(a) Whether the plaintiff is entitled for mandatory injunction under the guise of right of privacy without pleading and proving easement rights, and

(b) Whether the appellate Court gave correct finding regarding the right of the privacy without considering the easement right of both parties specially with reference to non-violation of Section 7 of the Easements Act?

So the point for consideration in this second appeal is whether the respondents are entitled to seek closure of the windows opened by the appellants in their own property on the ground that it amounts to invasion of their right of privacy.

The contention of the learned Counsel for the appellant is that since this Court in Konejeti Subba Rao v. Y. Venkateswarlu 1970 (1) ALT 125 and Kanbhampati Srihari Vs. Nallamalli Kanchivaradharanjan and Others, , held that there is right of privacy recognised in this State and since the Apex Court in Anguri and Others Vs. Jiwan Dass and Another, , held that if a party opens windows, invading the privacy of the neighbour, he can block those windows by raising walls, and since there is no evidence on record to show that the right of privacy is available in the State of Andhra Pradesh by way of custom, the first appellate Court was in error in reversing the well reasoned judgment of the trial Court.

The contention of the learned Counsel for the respondents is that by reason of the appellants opening windows in the first floor of their building, the privacy of the respondents is lost and so the respondents and especially the female member in the house of respondents are put to any amount of inconvenience and nuisance due to windows overlooking into house and site of the respondents, and since the first appellate Court gave cogent reasons for reversing the judgment of the trial Court, there are no grounds to interfere with the decree and judgment under appeal in this second Appeal.

In Konejeti Subba Rao (supra) and Kambhampati Srihari''s (supra) cases, it is clearly held that right of privacy is not recognised in this State of Andhra Pradesh. It is not the case of respondents either in the plaint or in their evidence that they are entitled to right of privacy by way of custom. It is well known that custom has to be pleaded and proved. So the respondents cannot, only on the ground of invasion of their privacy, seek closure of the windows opened by the appellants in their own building because, a person owning a property can enjoy the property in the manner he likes and can open any number of widows or door ways in his own building. If the neighbour is aggrieved by the adjacent owner opening the windows and door ways in his own building he can block them by raising walls in his own site as held by the Apex Court in Anguri and Others Vs. Jiwan Dass and Another, .

In view of the above position of law respondents are not entitled to seek a mandatory injunction for closure of the windows opened by the appellants in their own building and so I hold that the appellate Court was in error in allowing the appeal and reversing the judgment of the trial Court dismissing the suit of the respondents. The "point is answered accordingly.

Accordingly, the Second Appeal is allowed and the suit is dismissed. The respondents are at liberty to raise a wall in their site to prevent the appellants overlooking info their site. Parties are directed to Bear their own costs.